Other Information

June 29, 1894, Papers of the Hawaiian Historical Society, No. 7, "The Evolution of the Hawaiian Judiciary," presented by Hon. W. Frear, Associate Justice of the Supreme Court.

Before the 1840 Constitution

During the first period a feudal government existed with the King as lord paramount, the chief as mesne lord and the common man as tenant paravail. Each held land controlled by his immediate superior in return for military and other services and the payment of taxes or rent. Under this system all functions of government, executive, legislative and judicial, were united in the same persons and were exercised with almost absolute power subject only to his own superiors.There was no distinct judiciary and scarcely any conception of distinct judicial power, and yet judicial forms were to some extent observed.

Civil Trials

The usual method of obtaining redress was for injured parties or their friends to take the law into their own hands and retaliate, as in cases of assault or murder. In cases of theft the injured party went to the thief's house and took whatever he could find. This was not merely unbridled anarchy, though closely bordering upon it, but was well recognized as a justifiable legal proceeding. In cases where the wrong-doer was of higher rank than the injured party, or, if of inferior rank, belonged to another chief, the injured party appealed for justice to the King or some chief within whose territory the accused resided. Jurisdiction depended on the place where the offender lived, or, rather, upon the lord to whom he belonged, not the place where he was found or where the offense was committed. The wrong-doer could appeal to any chief from his immediate lord to the King, and from the decision of any chief the wrong-doer could appeal to any one of the chief's superiors. Thus, the system of justice had a series of courts, which might be called local, district and national, or, under Kamehameha, district, island and national. Each "court" was presided over by one person whose jurisdiction extended over all persons domiciled within his territory and was original, and to some extent concurrent and appellate.

Procedure

When a complaint was made, the parties were summoned to appear, generally in the house or front yard of the King or chief. Judgment was not usually rendered until both parties were heard face to face. Witnesses were rarely, if at all, examined. There was no jury, no prosecuting attorney, no lawyers. Each party argued his own cause usually sitting cross-legged before the judge. The trial was speedy and judgment was promptly rendered and executed.

A judge might exercise great discretion, and might grant the offender immunity from punishment. Much depended not only upon the character and enormity of the offense but upon the personal disposition of the chief, or the favor or disfavor in which he held the respective parties, or upon the intervention of friends who had influence with him. There was no distinction between public and private wrongs. The relief granted might be legal or equitable; restorative, compensatory or punitive. In case of theft, restoration of the stolen property and payment of damages in the nature of a fine was usually the judgment. But, if the theft was from a high chief the culprit might be bound hand and foot and set adrift far out at sea in an old worn out canoe. The remedy for disturbance of a water right was the restoration of the right. Adultery among the higher ranks was sometimes punished by decapitation. Banishment to another island was not uncommon The penalty for breach of etiquette by a tenant toward his lord was often extremely severe; the eyes might be scooped out or the limbs broken, and after several days of torture the victim might finally be put to death by burning, strangling, clubbing or in some other way.

Religious Trials

The political and religious systems were closely interwoven. The jurisdiction of priests was not confined to breaches of the religious taboos, but was to some extent concurrent with that of the chiefs over civil wrongs. The procedure, however, was quite different. Their trials were by ordeal and were of two kinds, ordeal by fire and ordeal by water.

One form of the water ordeal was the "wai halulu," or shaking water. A calabash of water was placed before the suspected person. After a prayer had been offered by a priest, the accused held both hands, with fingers spread out, over the calabash, while the priest closely watched the water. If it shook, the accused was guilty, otherwise innocent. The shaking of the water may have been accomplished by sleight of hand, or perhaps a guilty conscience.

Fire-ordeal was often used in cases of theft. The complainant first paid a fee or costs of court, usually a pig. A fire was then kindled and three kukui nuts were broken, one of which was thrown into the fire. While it was burning a priest uttered a prayer. So with the other nuts, one after the other. If the thief appeared and made restitution of the stolen property before all the nuts were consumed, he was dismissed with a heavy fine. Otherwise the thief was prayed to death. The thief then generally pined away and died, overcome by superstitious fears that he was the object of the wrath of the avenging deity. The trial by fire-ordeal might take place in the absence of the suspected person or even without a suspicion against any person in particular.

Laws & Litigation

The laws, all of them unwritten, were established by usage, or by the edict of the King, and proclaimed throughout the country by heralds. Of these, the taboos formed the largest and most complex as well as most oppressive body of laws. Next in number but first in importance, came the laws of real property upon which the whole system of government was based, including the laws of tenure, water rights, fishing rights and taxation. Laws relating to personal security, assault and occasionally murder, were few but important, the violations of which, considered more as torts than as crimes. There was little occasion for the law of contracts; for, estates in real property were created and transferred by favor rather than by contract. Personal property, of which very little was accumulated, was exchanged only by barter. Domestic relations were not regulated by law. Parents could do as they pleased with their children, often giving them to others or even putting them to death. Marriage and divorce rested upon the consent of the parties or their relatives.

1782 - 1819 Reign of Kamehameha I

The reign of Kamehameha I united the islands and the system of government changed from an island system to a national system. Previously
there had been one, sometimes more than one, king over each of the principal islands. But under Kamehameha I, there was one king, one supreme judicial, executive, and legislative officer took the place of several. Kamehameha appointed governors over the different islands taking the place of the former island kings. Then came the under chiefs over districts and villages, and tax officersappointed by the governors with the approval of the King. Thus there was a change not only from an island to a national system, but from a complex to a simple system.

The courts, if we may call them such were reduced to three levels. The national or supreme, presided over by the King; the island or superior, presided over by the several governors; and the two classes of district or inferior courts, presided over by the under chiefs and tax officers respectively, whose jurisdiction was concurrent as to territory but different as to subject matter.

There were four general territorial divisions presided over by the governors, the islands of Hawaii and Oahu each constituting one, and the islands of Maui and Kauai with the adjacent smaller islands respectively constituting the others. As a judicial division Maui included Molokai, Lanai, and Kahoolawe. Similarly, Niihau is included in Kauai. During this reign also, as a result chiefly of foreign influences, the religious system was undermined, and upon the death of Kamehameha in 1819, it fell to pieces.

Civil jurisdiction over religious matters continued to be exercised against idolatry which survived the overthrow of the native religion, and also against Roman Catholicism. Beginning in 1830, a few years after its introduction, it was considered lawful as against the Catholics until the Edict of Toleration of 1839. Against native idolatry until the Declaration of Rights of 1839 and the Constitution of 1840 which guaranteed religious liberty. The inferior judges, however, in their ignorance and zeal, occasionally tried cases of idolatry until as late as 1857.

1819-1840 From the Death of Kamehameha to the First Constitution

In of the weaknesses of his son and successor, Liholiho, Kamehameha I established the office of Kuhina Nui, or Premier, in his will. The Kuhina Nui was to have power co-ordinate with that of the King. The King and Kuhina Nui, may be said to have then constituted the Supreme Court. Kamehameha I also established a council of high chiefs which continued to grow in power until it developed into the House of Nobles. Soon after Kamehameha's death the seat of government, and, therefore, the seat of the Supreme Court, was removed from Kailua to Lahaina and Honolulu, these places having gradually grown in importance through the advent of foreigners.

Christianity was introduced the year following the death of Kamehameha I. Schools were established. Under the influences of their new religion and learning, the chiefs gradually became more humane in their views toward their dependents and more observant of their rights. The common people grew to learn that they had rights. A few written laws relating chiefly to assault, murder, theft, drunkenness, gambling and oppression, were promulgated from time to time, beginning in 1823.

Trials were conducted with greater formality and in capital cases even the jury was introduced without the aid of statute. In 1839, a course of lectures on the science of government was delivered by the Rev. William Richards to the chiefs at their request, and in the same year the Declaration of Rights, aptly called Hawaii's Magna Charta, was adopted securing all rights of person and property. The nation was then ready to enter upon a course of constitutional government. This was done by the promulgation of the first constitution, October 8, 1840.

Note: the bulk of this material was taken from Evolution of the Hawaiian Judiciary,by William Frear, Associate Justice of the Hawaii Supreme Court, delivered to the Hawaiian Historical Society June 29, 1894.

After the 1840 Constitution

1840-1847 From the First Constitution to the Act to Organize the Judiciary - Courts

Under e 1840 Constitution, legislative, executive and judicial powers were distinguished, but not with great clearness. The supreme judicial power which with other powers had been previously exercised by the King and Premier, who acted to some extent with the advice of the council of chiefs, was now vested in a Supreme Court consisting of the King, the Premier, and four other chiefs elected by the representative body. The king was Kauikeaouli, or Kamehameha III. The Premier was Kekauluohi (a woman); she died June 7, 1845, and was succeeded by Keoni Ana (John Young, Jr.). The other judges were Abner Paki, Charles Kanaina, Jona Kapena and Kaauwai. Kaauwai resigned in November 1844, and was succeeded by Josua Kaeo.

Island courts continued to be held by the Governors. One of these courts was held by a woman, Kekauonohi, Governess of Kauai. The lower courts were, as before, those of the tax officers and those of the district judges. In Honolulu there were at one time five district judges. Notwithstanding the meagerness of the constitutional provisions relating to the judiciary there was scarcely any legislation until the "Act to Organize the Judiciary Department" of 1847. These years were years of transition, during which the judiciary developed into the fairly complete system set forth in the Act of 1847.

Juries

The Act of 1842, the most note worthy legislation from this era before the Act of 1847, related chiefly to juries. These had been in use for several years and were mentioned incidentally in the Constitution, but had not yet been regulated by law. The tax officers and district judges were to sit without a jury, the former to hear tax and landlord and tenant cases, the latter to hear other cases in which the fine or damages amounted to less than $100. Cases in which the penalty was death, banishment, or other punishment of magnitude, or in which the fine or damages amounted to over $100 were to be heard with a jury by the Governors' courts or by the Supreme Court. In practice jury trials were confined to the Governors' courts.

The jury was to be composed of foreigners if both parties were foreigners; of natives, if both were natives; half of foreigners and half of natives, if there were a foreigner on one side and a native on the other. The term foreigner (haole) was construed by the courts to include those who were naturalized as well as aliens. In capital cases unanimity, in other cases agreement of three-fourths of the jury was required for a verdict. The jury must be not less than twelve in number, excepting that in cases other than capital, the jury, if foreign, might be less in number but not less than eight, this on account of the small number of foreigners in any one locality. As a matter of fact either eight or twelve jurors were usually drawn.

Before the Act of 1842, the Supreme Court had no regular terms, but now was to sit twice a year, was to sit only at Honolulu and Lahaina, since these were the only places where a sufficient number of foreign jurymen were likely to be found for capital cases. In the Governor's court there were to be no jury trials in the back country but only at the Governor's residence. As a further means of obtaining a sufficient number of foreign jurymen the Governor might call upon captains of vessels in port at the time of the trial. In one casef tried in 1844 before Governor Young at Lahaina, the whole jury of twelve consisted of captains of whaling vessels. (Tyron v. Calkin, Sept. 17,1844.)

Note: the bulk of this material was taken from Evolution of the Hawaiian Judiciary,by William Frear, Associate Justice of the Hawaii Supreme Court, delivered to the Hawaiian Historical Society June 29, 1894.